MN 11.28 Murder in the Second Degree–While Committing a Felony–Defined

10 Minn. Prac., Jury Instr. Guides–Criminal CRIMJIG 11.28 (6th ed.)

September 2020 update

Part II. Specific Crimes

A. Crimes Against the Person

Chapter 11. Homicide

CRIMJIG 11.28 Murder in the Second Degree–While Committing a Felony–Defined

Under Minnesota law, a person causing the death of another person, without intent to cause the death of any person, while committing or attempting to commit a felony offense1 is guilty of the crime of murder in the second degree.


M.S.A. § 609.19, subd. 2.

See M.S.A. § 609.185(a)(3) and CRIMJIG 11.08 defining murder in the first degree while committing specified crimes.

In State v. Aarsvold, 376 N.W.2d 518 (Minn. App. 1985), the Court of Appeals held that since the sale of cocaine alone does not justify the assumption that the purchaser is incurring a substantial and unjustified risk of death, sale of cocaine is not a proper felony upon which to base a charge of felony murder under M.S.A. § 609.19(2).

In State v. Branson, 487 N.W.2d 880 (Minn. 1992), the Supreme Court held that the felony murder statute of M.S.A. § 609.19, subd. 2(1), does not extend to a situation in which a by-stander is killed during an exchange of gunfire in which the defendant allegedly participated, but in which the fatal shot was fired by someone in a group adverse to the defendant, rather than the defendant or someone associated with the defendant.

In State v. Gorman, 532 N.W.2d 229 (Minn. App. 1995), aff’d, 546 N.W.2d 5 (1996), the Court of Appeals held that any kind of assault that inflicts bodily harm is committed “with force,” as required to be a predicate felony for felony murder.

Not all felony offenses serve as a predicate offense for murder in the second degree. The Supreme Court in State v. Anderson, 666 N.W.2d 696 (Minn. 2003) reiterated its holding that only those felonies that pose “a special danger to human life” may serve as predicate offenses. (See State v. Back, 341 N.W.2d 273 (Minn. 1983)). This standard requires the court to consider both the elements of the underlying felony in the abstract and the circumstances under which the felony was committed.